We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Faced with drought and water shortage, California water board can’t win for losing

Things couldn’t be going much worse for the California State Water Resources Control Board(“Board”). In the midst of one of California’s worst droughts on record that has seen water levels drop to historic lows in California Reservoirs, Governor Jerry Brown and the Board have been desperate to find and implement ways to conserve water and stretch supplies a little farther. On January 17, 2015, Governor Brown declared a drought State of Emergencyand directed state officials to take all necessary actions to prepare for water shortages. As a result, the Board took steps to curtail water use in a variety of sectors, including municipal, agricultural, and environmental uses. The Board’s good deeds, however, are not going unpunished, as lawsuits have been filed over the last month against the Board by at least one city, several irrigation districts, and a handful of conservation groups.

In City of Riverside v. State Water Resources Control Board, Case No. 15 CE CG 01769 filed June 4, 2015, the City of Riverside (“Riverside”) is seeking relief from aggressive, mandatory water use reductions required by the Board. On April 1, 2015, Governor Brown issued an executive order directing the Board to adopt emergency regulations that reduce potable urban water use by 25 percent. On May 5, 2015, the Board adopted Drought Emergency Water Conservation Regulations (“Emergency Regulations”) implementing the 25% reduction standard. The Board’s Emergency Regulations essentially exempts water suppliers with adequate surface water supplies (those suppliers with four-year reserves who do not import water or use groundwater) by only requiring that they achieve a 4% reduction, but no such exemption exists for water suppliers with adequate groundwater supplies. Riverside alleges that it is “Water Independent” with four years’ worth of groundwater stockpiled in well managed groundwater basins. Riverside claims that the Board abused its discretion in adopting the Emergency Regulations and acted arbitrarily and capriciously by requiring Riverside to cut its water consumption by 25% even though, at least according to Riverside, it would meet the exemption criteria but for the fact that its reserve supply is groundwater.

In California’s Central Valley, irrigation districts are suing the Board for steps it has taken to curtail water use of certain senior right holders in order to protect even more senior right holders. On June 12, 2015, the Board announced that it would direct senior water right holders with a priority date of 1903 or later in the San Joaquin watershed, the Sacramento watershed, and the Sacramento-San Joaquin Rivers Delta and San Francisco Bay (the “Bay Delta”), to stop diverting water needed by even more senior water right holders. Lawsuits quickly started dropping as a result, first by the Banta-Carbona Irrigation District on June 18, 2015, followed by the Patterson Irrigation District on June 19, and separately the San Joaquin Tributaries Authority (“Authority”) on June 19. The Authority is made up of a coalition of water agencies whose members include the Modesto Irrigation District, Turlock Irrigation District, Oakdale Irrigation District, Merced Irrigation District, South San Joaquin Irrigation District, and the City and County of San Francisco. Usually under western water law (the “prior appropriations doctrine”), water right holders must “make a call” on lower priority right holders to enforce and ensure delivery of their water rights. In this case, the Board took steps on its own to curtail water use without a call being made. The irrigation districts believe that the Board exceeded its authority by issuing curtailment orders unilaterally.

Even environmentalists are unhappy with steps the Board has taken to respond to the drought. On June 3, 2015, the California Sportsfishing Protection Alliance, joined by the California Water Impact Network, Aqualliance, and Restore the Delta, sued the Board, the California Department of Water Resources (“CDWR”), the US Bureau of Reclamation (“Reclamation”), and various individuals in their official capacities, alleging that the Board’s temporary approval of modifications to water quality objectives sought by Reclamation and CDWR to increase water available to irrigators violated a variety of state and federal laws, including water quality standards adopted under the Bay-Delta Plan and the Central Valley Project Improvement Act. The environmental parties allege that the modifications made to increase supplies for irrigators was made at the expense of decreasing water supplies needed to protect endangered native fish species – including the delta smelt, Sacramento River winter-run Chinook Salmon, and Central Valley steelhead.

It is commonly known that California’s groundwater laws have been among the least restrictive. While the Board has taken aggressive measures to stretch water supplies further in hope of bridging the water supply gap to the end of the drought, much of this might have been avoided with better water resource planning, water management laws, and conservation efforts. We will continue to monitor these cases for further development.